California OAH special education order · September 18, 2020

Order Denying Motion for Stay Put

OAH Case No. 2020060198 · ALJ Cararea Lucier

OAH denied Student's stay put motion because Student offered no sworn declaration showing the March 15, 2018 IEP was ever implemented, while Davis Joint Unified supported its opposition with a declaration.

Denied Stay put

Summary

Student asked OAH to order that the March 15, 2018 IEP was Student's stay put placement. Davis Joint Unified opposed and included a declaration from a district program specialist about Student's last agreed-upon and implemented program. OAH denied the motion. Student attached the IEP but gave no sworn declaration and not enough proof that the IEP had actually been implemented.

Why it matters

Stay put protects the last IEP that was both agreed to and actually put into place, so attaching the IEP alone is not enough. Families should file a sworn declaration showing that the IEP was implemented, especially when the district answers with its own declaration.

Key authority cited

  • 20 U.S.C. § 1415(j)
  • 34 C.F.R. § 300.518(a)
  • Ed. Code, § 56505, subd. (d)
  • Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618

Topics

stay put current educational placement evidentiary support declarations implementation

Full text of the order

Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

IN THE MATTER OF:

PARENT ON BEHALF OF STUDENT,

v.

DAVIS JOINT UNIFIED SCHOOL DISTRICT

OAH CASE NUMBER 2020060198

ORDER DENYING MOTION FOR STAY PUT

SEPTEMBER 18, 2020

On September 14, 2020, Student filed a motion for stay put. On September 17, 2020, Davis Joint Unified School District filed an opposition.

APPLICABLE LAW

Until due process hearing procedures are complete, a special education student is entitled to remain in his or her current educational placement, unless the parties agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) (2006); Ed. Code, § 56505 subd. (d).)

This is referred to as “stay put.” For purposes of stay put, the current educational placement is typically the last agreed upon and implemented individualized educational program, called IEP, placement prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)

DISCUSSION

Student’s motion for stay put is not supported by a sworn declaration supporting his argument that the March 15, 2018, IEP is his stay put placement. Although Student attached an IEP document to his motion, he did not provide sufficient proof that the attached IEP has been implemented, especially as Davis Joint Unified’s response includes a declaration from a Davis Joint Unified program specialist regarding Student’s last agreed to and implemented educational program. As such, Student’s motion for stay put is denied.

IT IS SO ORDERED.

Cararea Lucier Administrative Law Judge Office of Administrative Hearings